Facts
As part of an investigation into criminal organization, corruption, and money laundering, Ukrainian authorities have submitted a request for mutual legal assistance to Switzerland. The investigation specifically targets B., a high-ranking official suspected of establishing complex financial structures to launder and transfer illicit funds abroad. The request seeks to obtain banking documentation for an account held by A. Ltd (the appellant) at Bank F. in Switzerland.
After obtaining the documents from the bank, the Office of the Attorney General of Switzerland (OAG) lifted the non-disclosure order and granted A. Ltd a deadline to come forward if it wished to participate in the proceedings. The bank informed G., the last known signatory of the account (which had been closed in 2018), but the latter did not pass the information on to A. Ltd.
The OAG subsequently issued a closing order authorizing the transmission of the documents to Ukraine. It was only after this decision that A. Ltd became aware of the proceedings. It unsuccessfully requested the revocation of the order and then appealed to the Appeals Chamber of the Federal Criminal Court, alleging a violation of its right to be heard, the principle of proportionality, and the political nature of the proceedings.
Law
The Court reiterates the principles governing international mutual legal assistance in criminal matters.
- Right to be heard (Art. 29 para. 2 Cst.; Art. 80b IMAC) : In matters of criminal legal assistance, this right is guaranteed in a modified form. Entitled parties may participate in the proceedings and consult the file when the protection of their interests requires it, subject to restrictions provided by law, particularly due to the interests of the foreign proceedings, the protection of third parties, or the urgency of the measures.
- Notification of the account holder abroad (Art. 80m, 80n IMAC; Art. 9 OIMAC) : When a beneficial owner is domiciled abroad and has not elected a domicile for service in Switzerland, they generally have no right to be served with decisions (Art. 80m IMAC; Art. 9 OIMAC). However, the executing authority may serve decisions upon the bank, which is then required to inform its client (Art. 80n IMAC). According to case law, if the bank fails to inform the account holder or does so late, this failure is not attributable to the executing authority and does not constitute a violation of the right to be heard.
- Potential utility, relevance, and the prohibition of "fishing expeditions" (Art. 63 para. 1 IMAC ; Art. 5 para. 2 of the Federal Constitution.) : Mutual assistance is granted when the requested acts appear necessary for the foreign criminal proceedings (Art. 63 para. 1 IMAC). According to case law, it may only be refused if the requested measures are manifestly unrelated to the offense under investigation and amount to an indiscriminate search for evidence ("fishing expedition"). The requesting authority has broad discretion regarding the potential utility of the requested information; however, a sufficient connection between the facts under investigation and the requested documents must be established.
Application to the specific case
- Violation of the right to be heard : The Court rejects this claim. The OAG correctly followed the procedure by serving the bank, F., since A. Ltd had no domicile in Switzerland. The fact that internal communication between the bank, its former signatory G., and A. Ltd failed is not attributable to the OAG. The appellant must bear the consequences of this communication failure. Furthermore, it was able to present all its arguments before the Appeals Chamber, which has full power of review, which would have cured any potential violation in any event.
- Violation of the principle of proportionality : The Court also dismisses this argument. The mutual assistance request establishes that suspicious funds passed through a company named I. Inc. The case file shows that the account of the appellant, A. Ltd, received significant transfers (EUR 197,000 and USD 100,000) from I. Inc. This direct link demonstrates the potential utility of the bank documents for the Ukrainian investigation. The appellant's arguments regarding the legitimacy of these transactions concern the merits of the case and must be presented to the Ukrainian authorities.
- Political nature of the proceedings : The claim is rejected. The appellant provides no concrete evidence to support this allegation. Moreover, as a legal entity, it is not entitled to invoke a risk of political persecution concerning a third party, in this case, its former beneficial owner G.
Outcome
The Appeals Chamber dismisses the appeal. It confirms the OAG's decision to grant mutual assistance and order the handover of A. Ltd's bank documentation to the Ukrainian authorities. The costs of the proceedings are charged to the appellant.
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